Forum: Free speech has been very good to Donald Trump

By Noah Feldman

Published 4:12 pm, Tuesday, August 16, 2016

If only those First Amendment people could do something about Donald Trump. His latest attack on their sacred cow is the assertion that “It is not ‘freedom of the press’ when newspapers and others are allowed to say and write whatever they want even if it is completely false!”

That’s wrong as a matter of constitutional law. But it’s not crazy. In fact, the U.S. Supreme Court has recently accorded a high degree of protection to falsehoods. And the kinds of justices that the Republican presidential nominee might appoint could well reverse it.

The landmark case for the constitutional protection of lies and the lying liars who tell them was decided in 2012. It involved a prosecution under the Stolen Valor Act, a federal statute that made it a crime to say you have military medals you never earned -- and bigger crime to claim falsely to have received the Medal of Honor.

The protagonist of the colorful case was Xavier Alvarez, who among other things falsely claimed to have played hockey for the Detroit Red Wings and to have married a Mexican starlet. Alvarez got in trouble after being elected to the Three Valleys Water District Board in Claremont, California. At his first meeting, Alvarez introduced himself by saying, “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the congressional Medal of Honor. I got wounded many times by the same guy.”

Alvarez hadn’t received the medal. He hadn’t even been a Marine. The federal government prosecuted him under the Stolen Valor Act, seeking the enhanced penalty of one year in prison that the law provides for his Medal of Honor claim.

In a 6-3 decision, the Supreme Court reversed Alvarez’s conviction and struck down the Stolen Valor Act as unconstitutional.

In it, Kennedy asserted straightforwardly that the First Amendment requires the highest degree of scrutiny for laws that punish speech based on its content -- no matter whether that content is true or false. That means such laws can only be upheld if the government has a compelling interest in them and they are narrowly tailored to achieving that interest -- a standard that almost no law can meet.

The only exceptions to this general ban on content-based regulation, Kennedy said, were the traditional areas of obscenity, fighting words, true threats and defamation. And even in those areas, falsehood can sometimes be constitutionally protected. The most famous example is defamation of a public figure: false, defamatory statements are protected unless they’re made maliciously, with knowledge of their falsity or reckless disregard of it. This is why the National Enquirer can say what it will about Trump’s personal life.

Kennedy went on to explain that if the government could punish lies, it could extend its reach to “whispered conversations within a home.”

And he recited the mantra of the free-speech diehards: “The remedy for speech that is false is speech that is true.”

In a separate concurrence, Justice Stephen Breyer, joined by Justice Elena Kagan, took a more moderate position. He said that prohibitions of factually false speech deserved only intermediate scrutiny, meaning that such laws need only serve an important government interest and be proportionate to the purpose in question. But Breyer agreed with the plurality that the Stolen Valor Act was unconstitutional. He also gave a long list of situations where he considered lies to be useful, ranging from privacy to preserving a child’s innocence to Socratic examination.

That left it to Justice Samuel Alito, joined by Justices Antonin Scalia and Clarence Thomas, to voice the Trump position. Alito stated, with more or less accuracy, that according to traditional Supreme Court doctrine, “false factual statements possess no intrinsic First Amendment value.” It’s a crime to lie to government officials and a crime to pretend to speak on behalf of the government, he noted. The Stolen Valor Act was necessary, he said -- and the court’s holding was “radical.”

Alito was right there’s something radical about protecting falsehood as closely as truth. But that radicalism lies at the heart of the First Amendment: enabling truth to emerge through the free exchange of ideas. Falsehoods are part of the process whereby the truth comes to be defined and understood.

Free speech has been very good to Donald Trump, enabling him to appeal to Russian hackers and “Second Amendment people” and generally to say whatever is on his mind. It would be nice if he reciprocated the favors the First Amendment has done for him.

But even if he doesn’t, First Amendment truthers have no choice but to disagree with him -- in speech. They think that truth is great and will prevail. This election is a good test of whether that Jeffersonian adage is factually accurate.